her out into the street. The wife then went and committed adultery, but subsequently repenting of her conduct, and having no means of subsistence, she offered to return to her husband, but the latter would not receive her, whereupon the wife obtained board and lodging from a third party, who sought to charge the husband with the payment of it, on the ground that the previous adultery of the latter precluded him from taking advantage of his wife's misconduct; but the court held that it made no difference in the case, and that the action was not maintainable. (1) But if a condonation takes place; if the husband after he has put her away by reason of adultery, receives her back again, all her original rights are restored, and the husband cannot then refuse to support and maintain her, unless he can prove the commission of a fresh and subsequent act of adultery. (m) And if the husband connives at the adultery of the wife, he cannot refuse to maintain her. If he permits her to remain in the possession of his dwelling-house, " and voluntarily yields his bed to the adulterer, he has no colour of defence. Knowing of her criminal conduct and conniving at it, he must maintain her as before.” (n) Proof of the adultery.-The commission of the adultery must be strictly proved by the husband who seeks to resist the claim for necessaries, and the verdict in an action for criminal conversation being res inter alios acta, cannot be adduced as evidence of the adultery in an action between the husband and the person who has furnished the means of subsistence, unless he was himself the defendant in that action. (0) Desertion of the husband by the wife.-If the wife leaves the husband. without just cause, and refuses to cohabit with him, she forfeits her right to maintenance. If she will not share his bed and board, she cannot procure subsistence elsewhere, at his expense. To permit tradesmen to supply goods and the means of subsistence to wives who have deserted their husbands and families, and to charge the husband with the payment of the price of the articles so supplied, would be the means of affording a direct premium for the breach of the marriage contract, and the commission of all sorts of crimes, and would be clearly contrary to the public policy of the law. Therefore, "it has been resolved that if the wife will not cohabit with the husband, but during the time of her voluntary departure, purchases provisions and clothes for herself, and it is given in evidence to the jury that they were necessaries suited to the estate and degree of her husband, yet this is not sufficient evidence to warrant, a finding (1) Govier v. Hancock, 6 T. R. 603. (m) Harris v. Morris, 4 Esp. 41. (a) Buller, J. Norton v. Fazan, 1 B. & P. 227. Robison v. Gosnold, 6 Mod. 172; 1 Salk, 119, s. c. (0) Hardie v. Grant, 8 C. & P. 514. by the jury in assumpsit against the husband, for there is a difference for this purpose between wives who are willing to cohabit with their husbands, and those that spontaneously depart from them; and this appears by Magna Charta." (o) "If a woman, who can have no goods of her own to live on, will depart from her husband against his will, and will not submit herself to him, let her live on charity or starve in the name of God, for in such case the law says, her evil demeanour has brought it upon herself, and her death ought to be imputed to her own wilfulness. If she be The law of so haughty a stomach that she will choose to starve rather than submit, and be reconciled to her husband, let her take her own choice. is in no default which doth not provide for such a wife." (p) Wife's offer to return.-If the wife has departed from the husband and lived separate from him without just cause, and then offers to return to him, his liability to receive her back and maintain her will depend upon the length of the separation and the wife's conduct during the intermediate period. If she has retired to the bosom of her own family, and lived a virtuous and moral life, and has returned to a sense of duty after a short absence, the husband would be bound to receive her back; and if he refused to do so, his liability for necessaries supplied to her would be revived from the time of such refusal. (g) But if she persists in her neglect of the marriage tie and of her duties as a wife for a lengthened period, and refuses the solicitations of her husband to return to him, the latter would not, after such a continued course of disobedience and misconduct evidencing her incapacity properly to fulfil the duties of a wife, be bound to receive her back or maintain her." When she departs from her husband against his will, and remains so long absent, and returns again at her own pleasure, the husband shall not be obliged to maintain her after her return any more than when she was absent; for if it were so, wives might leave their husbands in their youth, and return in their old age when they cannot be so assisting to their husbands as before; and their society and assistance and comfort to their husbands is one consideration for their maintenance." (r) "The wife, moreover," observes Hyde, J., " ought to be a penitentiary before the husband is bound to receive her back or give her any maintenance. By departing from her (0) Manby v. Scott, 2 Smith's cas. 272; 1 Sid. 129, 130. (p) Hyde, J., Manby v. Scott, 12 Mod. 132. So by the civil law, Si uxor propria sine culpâ mariti sit extra consortium viri, non tenetur maritus extunc ei extra consortium suum exis tenti aliqualiter subministrare. Dig. lib. 23, tit. 3. (q) Raym., C. J., 2 Str. 875. Tyrrell, J., 12 Mod. 131. Lord Eldon, Ewers v. Hutton, 3 Esp. 256. (r) Manby v. Scott, 1 Lev. 5; 12 Mod. 131. husband against his will, she breaks her marriage vow, deprives him of that mutual society, help, and comfort which she owes him for divers years, and are all these offences washed away with a bare desire without submission or contrition? Certainly they are not; confession and promise of future obedience ought to precede her restitution to the privileges of a wife." (s) The liability of the husband, therefore, for necessaries supplied to a wife who is living separate and apart from him depends upon the circumstances attendant upon the separation, and tradesmen must be cautious in trusting such wives without the knowledge and sanction of their hus• bands, or without making strict inquiries into the cause of the separation. If they do part with their goods, and then seek to charge the husband with the payment of them, the onus of proving that the separation took place under such circumstances as will entitle them to recover the price from the latter falls upon their shoulders. (t) "The mischief of allowing the ordering of goods by a married woman living apart from her husband, to be primâ facie evidence, so as to charge him for them, would be incalculable." (u) Desertion of the wife by the husband.-So long as the husband and wife cohabit and reside together, the husband's duty of supporting and cherishing his wife is presumed to be fulfilled, and the law leaves it to the husband, as we have already seen, to determine in what style and degree she is to be maintained, so that no third person has any right to supply the wife with necessaries or with goods of any description in the face of an express prohibition from the husband. But if the husband separates himself from his wife, or removes her from his dwelling, and leaves her destitute, without being able to prove that she has forfeited her marriage rights by adultery, the prohibition is of no avail, for the law then gives her a right to support herself upon the credit and at the expense of her husband, and any tradesman who at her request supplies her with necessaries suitable to her degree and station in life, does, in contemplation of law, supply them to the husband himself, and may recover the amount as a debt due to him from the latter, notwithstanding the prohibition." That cannot avail him, for if he put the wife out of doors, though he advertised and cautioned all persons not to trust her, or if he even gave particular notice to individuals not to give her credit, still he would be liable for necessaries furnished her; for the law has said, that (s) Manby v. Scott, 12 Mod. 132. (t) Clifford v. Laton, 3 C. & P. 16. man v. Wakefield, 1 Campb. 121. Waith- Towels, 6 Sc. N. R. 641. (a) Abbott, C. J., Mainwaring v. Leslie, 1 Mood. & Malk. 18. where a man turns his wife out of doors, he sends with her credit for her reasonable expenses." (a) And if a married woman has been forcibly expelled from her home by her husband, and threatened with violence at his hands," she carries along with her a credit for whatever her preservation may require. She has a right to appeal to the law for protection, so as to charge her husband for the necessary expense of the proceeding, as much as for necessary food or raiment." Therefore, where a wife, being turned out of doors with circumstances of great violence by her husband, employed an attorney to exhibit articles of the peace against him, it was held that the husband was responsible for the payment of the attorney's charges. (y) But an indictment against the husband is not necessary for the protection of the wife, and, therefore, where a husband, having illtreated his wife, was indicted on her prosecution, and fined and imprisoned, and a brother of the wife advanced money to pay the expenses of the prosecution, it was held that he was not entitled to recover the amount from the husband. (2) The husband is not liable for expenses incurred by the wife without his sanction in procuring a deed of separation. (a) And although a husband has not forcibly expelled his wife from his house, yet, if by cruelty, or threats of personal violence, or by indecent and shameless conduct, he renders it morally impossible for her to continue to cohabit and reside with him, and she accordingly leaves him, this is as much an expulsion in the eye of the law as if he had turned her out by main force. "If a husband conducts himself towards his wife with such a degree of misconduct and cruelty as to render it no longer safe for her to remain in his house, she is not to starve in the street or seek relief in the parish workhouse, but is justified in leaving her home, and goes forth into the world with a credit for the necessaries of life suitable to her condition. Such is the effect of the marriage contract, and if the husband by his misconduct forces her to leave his protection, she may seek the means of subsistence elsewhere, and those who from charity or other motives are willing to provide them are entitled to recover a compensation from the husband." (b) If the husband brings (x) Lord Kenyon, Harris v. Morris, 4 Esp. 41. Hodges v. Hodges, 1 Esp. 441. Per Lord Eldon, Rawlins v. Vandyke, 3 Esp. 250. Holt, C. J., Etherington v. Parrot, Raym. 1006. And see Boulton v. Prentice, Selw. N. P. 279, 280; 2 Str. 1214, s. c.. Bayley, J., Montague v. Benedict, 3 B. & C. 635. (y) Turner v. Rookes, 10 Ad. & E. 47; 2 P. home a loose and immoral woman, and treats her as a member of his family, this is a sufficient cause for the wife's leaving him, and so is the existence and continuance of an adulterous intercourse on the part of the husband with another woman. In general," the jury are to determine whether the circumstances justified the wife in leaving or not." (c) And whenever the wife has once left her husband under justifiable circumstances, she is not bound to return upon the invitation of the latter, and the husband's liability for necessaries furnished to her by third parties during the continuance of the separation cannot be determined by a request on his part that she will again return to his protection. Thus, where a husband abused and brutally beat his wife, and swore that he would run her through the body, and the wife fled from the house in the night almost in a state of nudity, and went to the residence of a friend, where she was confined to her bed for several days in consequence of the ill-treatment she had received, and afterwards resided for four years in lodgings and at the houses of friends, and then went to live with her father, who brought an action against the husband for the board and lodging, and it appeared that the husband, after she had left him, had sent and offered to receive her back, which offer she had rejected, it was held that the request so conveyed to her to return home, and her refusal so to do, did not, under the circumstances, afford any answer to the action." If, sitting in a court of law," observes Garrow, B., "we were to be of opinion that whatever had been the previous misconduct of the defendant towards the wife, the period had arrived at which he might insist upon her return, and upon her refusal, that his liability would be determined, the spiritual court might, notwithstanding, decree a divorce a mensâ et thoro and alimony upon the ground of cruelty; and thus a court of common law, having pronounced the obligation of the husband to supply necessaries to be at an end, a court of competent jurisdiction upon the very same facts might arrive at a decree diametrically opposite. In this state of difficulty, the strong impression upon my mind, and which, upon consideration, I have been unable to remove, is that if a husband drives his wife from home by his own misconduct, and sends her forth with an implied credit arising from their relative situations, it is his duty by some positive act to determine that liability. If the wife subsequently returns, his liability is at an end; but in default of an amicable arrangement, he must go to the spiritual court, and there obtain (c) Hodges v. Hodges, 1 Esp. 441. Houlston v. Smythe, 2 C. & P. 22, 30; 3 Bing. 127, s. c. Aldis v. Chapman, Selw. N. P., 10th ed. 278. Hunter v. Blaquiere, 3 M. & P. 108, overruling |